Re Haider Usman

HCAL 363/2019

[2022] HKCFI 1281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 363 OF 2019

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D E C I S I O N

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1.On 8 December 2021 I refused to extend time to the Applicant’s late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing his appeal regarding his non-refoulement claim upon finding that there was no good reason for his serious delay of more than 5 months with his leave application, that none of his proposed grounds were reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 7 February 2022 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap. 4A ended on 22 December 2021, and hence he was more than 6 weeks late with his intended appeal.

3.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of more than 6 weeks must be considered as very substantial or inordinate, for which he explained in his supporting affirmation that he was then being detained at Castle Peak Bay Immigration Centre (“CIC”) and had had to find help with his appeal, but that by the time he was able to do so, he was already out of time with his intended appeal. The Applicant did not provide any further details or evidence in support of his assertion, nor did he subsequently attend the hearing of his summons without any explanation.

5.The court record shows that the decision was indeed sent on the same day to the Applicant at CIC where I accept that there would be some inevitable delays with incoming and outgoing mails for inmates as well as in accessing legal assistance, but I am not satisfied that these factors could justify s delay of more than 6 weeks in the Applicant’s situation.

6.More importantly, the Applicant has failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in his summons or in his affirmation in which he just repeated what he had previously stated in his leave application for judicial review that the decisions of the Director and the Board were not fair or reasonable, and as noted above nor did he attend the hearing of his summons without any explanation. As such and in the absence of any error in the Court’s decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7.In the premises, and for the reasons given, it would be futile to extend time for what appears to be a hopeless appeal. I accordingly refuse his application for extension of time to appeal, and dismiss his summons.

The Applicant was not represented and did not appear